Global Initiative - ESCR joins submission to OHCHR on Business and Human Rights

The Global Initiative for Economic, Social and Cultural Rights has joined a submission to the UN Office of the High Commissioner for Human Rights. The submission, jointly sent by members of the World Bank and Human Rights Affinity Group, addresses business and human rights in the context of World Bank activities. The full text of the submission follows below. _______________________________________________________________________________

March 28, 2012

Lene Wendland Research and Right to Development Division Office of the United Nations High Commissioner for Human Rights CH-1211 Geneva 10 Switzerland

Re: Submission for Report on Business and Human Rights and the UN System

Dear Ms. Wendland:

We welcome the opportunity to provide input to the United Nations (UN) Secretary-General’s report regarding how the UN system can contribute to the advancement of the business and human rights agenda and the implementation of the “Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework.” The undersigned organizations encourage the Secretary-General to address in his report the role the World Bank Group (WBG) should play as a specialized agency of the UN, according to agreements concluded in 1948 and 1961, in supporting the implementation of the Guiding Principles and the underlying UN Framework, as one component of broader efforts to advance compliance with human rights standards.

The WBG should recognize the need to act in a manner consistent with the three pillars of the UN’s “Protect, Respect and Remedy” human rights framework, including as elaborated in the Guiding Principles. Governments’ obligations to respect human rights include the obligation to protect against human rights abuses by third parties. This is particularly relevant to the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA), which engage with, and are governed by, sovereign governments. In addition, the corporate responsibility to respect all human rights is of special significance for the International Finance Corporation (IFC) and the Multilateral Investment Guarantee Agency (MIGA), which engage the private sector. It is particularly important that the WBG, in its activities, uphold the third pillar of the UN Framework, regarding access to justice for victims of human rights abuses. The WBG should ensure that its response to the findings of its accountability mechanisms provide concrete redress for communities.

The WBG is well positioned to raise awareness about the Guiding Principles and UN Framework and to secure their implementation. It could do this by adopting environmental and human rights policies that are aligned with the international human rights obligations of its member states and clients. Unfortunately, the current policies of the WBG do not meet these standards. There will be an opportunity later this year to address this and effectively integrate the UN Guiding Principles and Framework on Business and Human Rights and relevant international human rights instruments when IBRD and IDA review eight of their safeguard policies, together with its policy on the use of country systems to address environmental and social safeguard issues.

Current IBRD and IDA policies do not ensure a robust due diligence process to identify potential human rights impacts or address them. The nine policies included in the review are: environmental assessment, natural habitats, pest management, Indigenous Peoples, physical cultural resources, involuntary resettlement, forests, dam safety, and use of country systems. Although many of the policies implicate human rights, only two are considered by the World Bank to address “social issues.” The Indigenous Peoples policy is the only one that explicitly mentions human rights. However, this policy does not reflect the full extent of the rights of indigenous peoples, as enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. The policies of IBRD and IDA presently do not address a range of major human rights issues such as labor rights, non-discrimination, the rights of disabled persons, or women’s rights, and there is no overarching human rights policy, like the environmental assessment policy, which would require clients to conduct a human rights impact assessment.

An added layer of complexity is that even as the WBG reviews these policies, they apply to fewer of IBRD and IDA’s activities. Increasingly, IBRD and IDA are failing to assume their responsibility to prevent negative impacts from the projects and programs they finance through new approaches to lending, including Development Policy Loans (DPLs). As indicated in the Guiding Principles, host governments have the duty to respect human rights and to protect against violations committed by corporations, but we believe that that should be in addition to, and not a substitution for, the international human rights obligations of the member states of the WBG. As recognized in the Commentary to the Guiding Principles, “States retain their international human rights law obligations when they participate in such [international trade and financial] institutions.” In addition, the Maastricht Principles on Extra-Territorial Obligations provide useful interpretative support to the Guiding Principles, and the ETO Principles clarify that a state must take all reasonable steps to ensure that the relevant organization acts consistently with the international human rights obligations of that state.

The private sector lending arm of the WBG—IFC and MIGA—is bound by a separate set of environmental and social policies, the Policy and Performance Standards on Environmental and Social Sustainability. The Policy outlines the responsibilities of the IFC and MIGA, and the eight Performance Standards describe the requirements for their clients.

The IFC recently concluded a multi-year review of the Policy and Performance Standards in January 2012. Although the new framework adopts some human rights language, including a requirement for free, prior and informed consent for projects affecting indigenous peoples, it falls short of what would be required by international human rights norms. For example, the new framework does not require its clients to undertake a human rights impact assessment, stating only that it might be “appropriate” in limited high risk circumstances. Performance Standard 1 admits that due diligence against the other Performance Standards will allow IFC/MIGA’s clients to address many, but not all, human rights issues. By contrast, the Commentary to the Guiding Principles is quite clear on this point: “While processes for assessing human rights impacts can be incorporated within other processes such as risk assessments or environmental and social impact assessments, they should include all internationally recognized human rights as a reference point, since enterprises may potentially impact virtually any of these rights.” The WBG’s failure to require a human rights impact assessment is despite the fact that the IFC has prepared a guide to human rights assessment and management. Similar to IBRD and IDA, IFC is also distancing itself from responsibility for the impacts of the projects it finances through the use of financial intermediaries. The IFC applies a different and less rigorous set of standards to financial intermediaries, which, in turn, finance projects that could have comparable impacts to projects the IFC finances directly.

The WBG has unfulfilled potential to support the human rights obligations of its member states and clients. One significant obstacle in realizing its potential is the reticence on the part of the member states, usually represented by the finance minister, to discuss human rights. Another challenge is to raise awareness among the 10,000 employees of the WBG. Some progress has been made within the institution to educate staff about the potential human rights impacts of the WBG’s operations through the work of the Nordic Trust Fund, but substantially more needs to be done. We urge the Secretary-General, in his report, to call on the WBG to fulfill its potential and ensure that its policies are consistent with the Guiding Principles, the UN Framework and international human rights standards.

If we can provide any additional information, please contact Kris Genovese (kgenovese@ciel.org) at the Center for International Environmental Law or Leonardo Crippa (lcrippa@indianlaw.org) at the Indian Law Resource Center.

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